The Worst Rules Enforced by the Department of Health

Ever since New York City’s Department of Health enacted a new restaurant grading system in 2010, restaurateurs and chefs have wrestled with the bureaucracy-laden system, as well as the public stigma that comes from posting anything other than a sparkling blue “A” grade your window. As the problems mount, lawsuits crystalize, and mayoral hopefuls like Christine Quinn and Bill de Blasio get involved (both are outspoken advocates for the system’s reform), there’s one thing that is certain: the Department of Health’s stringent regulatory framework could use some regulation itself.

The main grievances from chefs and owners include the arbitrary nature of the rules, the inconsistencies of the inspections, and the high fines for violations (a total of $51.4 million dollars collected last year). These issues have reinforced a fundamental distrust between the restaurants and the DOH, which is a shame—after all, public health and a flourishing restaurant scene are not inherently antipodal: Keeping diners safe, well-fed, and happy is in the interest of both parties. But the antagonistic relationship between the DOH and restaurants ensures a panic anytime a DOH inspector flashes his badge.

Without diving too deep into the tedium of policy, the grading system works like this: Every NYC restaurant is inspected at least once a year by the Health Department. An inspector comes to the restaurant during service hours, unannounced, and combs through every part of the restaurant, from the kitchens to the bathroom, looking for infractions. These infractions can be related to the environment (carbon monoxide levels), structural elements of the building (cracked floor tiles), maintenance (an empty paper towel dispenser in the bathroom), and—of course—food preparation. Infractions accrue points, resulting in a letter grade which must be posted publicly in the façade of the restaurant. An A means 0 to 13 points, a B means 14-27 points, a C means 28+ points.

The rules are vague, convoluted, and ultimately, up to the discretion of the individual inspector. Since the the grading system is not well understood by the general public, anything less than an A can conjure up nightmares of a decrepit, vermin-filled kitchen when in reality, the restaurant may have been caught on a bad day, when the inspector was in a foul mood. Moreover, a restaurant can end up with a B or C in many different ways, some of which diners probably wouldn’t care that much about if they knew the details. Sure, you would be grossed out to know that there were piles of trash lying around, or roaches near the walk-in. But do you really care that a cook’s cutting board is scratched, or that a completely bald chef isn’t wearing a hat? Probably not, but both of those are potential infractions.

If the grading system is to grow into a better managed, more consistent process (it is in its infancy), then addressing some of the arcane, autocratic, and just plain ridiculous rules is a good place to start. To demonstrate some of the fundamental problems with it, we’ve compuled the 10 DOH dumbest rules we think should be the first to go. Throughout, we’ve included other examples of not-that-gross infractions that can easily leave a restaurant with a B grade or lower.

Ever since New York City’s Department of Health enacted a new restaurant grading system in 2010, restaurateurs and chefs have wrestled with the bureaucracy-laden system, as well as the public stigma that comes from posting anything other than a sparkling blue "A" grade your window. As the problems mount, lawsuits crystalize, and mayoral hopefuls like Christine Quinn and Bill de Blasio get involved (both are outspoken advocates for the system’s reform), there’s one thing that is certain: the Department of Health’s stringent regulatory framework could use some regulation itself.
The main grievances from chefs and owners include the arbitrary nature of the rules, the inconsistencies of the inspections, and the high fines for violations (a total of $51.4 million dollars collected last year). These issues have reinforced a fundamental distrust between the restaurants and the DOH, which is a shame—after all, public health and a flourishing restaurant scene are not inherently antipodal: Keeping diners safe, well-fed, and happy is in the interest of both parties. But the antagonistic relationship between the DOH and restaurants ensures a panic anytime a DOH inspector flashes his badge.
Without diving too deep into the tedium of policy, the grading system works like this: Every NYC restaurant is inspected at least once a year by the Health Department. An inspector comes to the restaurant during service hours, unannounced, and combs through every part of the restaurant, from the kitchens to the bathroom, looking for infractions. These infractions can be related to the environment (carbon monoxide levels), structural elements of the building (cracked floor tiles), maintenance (an empty paper towel dispenser in the bathroom), and—of course—food preparation. Infractions accrue points, resulting in a letter grade which must be posted publicly in the façade of the restaurant. An A means 0 to 13 points, a B means 14-27 points, a C means 28+ points.
The rules are vague, convoluted, and ultimately, up to the discretion of the individual inspector. Since the the grading system is not well understood by the general public, anything less than an A can conjure up nightmares of a decrepit, vermin-filled kitchen when in reality, the restaurant may have been caught on a bad day, when the inspector was in a foul mood. Moreover, a restaurant can end up with a B or C in many different ways, some of which diners probably wouldn't care that much about if they knew the details. Sure, you would be grossed out to know that there were piles of trash lying around, or roaches near the walk-in. But do you really care that a cook's cutting board is scratched, or that a completely bald chef isn't wearing a hat? Probably not, but both of those are potential infractions.
If the grading system is to grow into a better managed, more consistent process (it is in its infancy), then addressing some of the arcane, autocratic, and just plain ridiculous rules is a good place to start. To demonstrate some of the fundamental problems with it, we've compuled the 10 DOH dumbest rules we think should be the first to go. Throughout, we've included other examples of not-that-gross infractions that can easily leave a restaurant with a B grade or lower.

The glove issue

In theory, gloves are a wonderful product that aid many professionals: surgeons, medics, proctologists, and, yes, chefs. But while gloves may be sterile barriers between humans and food, they're not magic. Wearing gloves in the kitchen doesn’t inherently prevent the transmission of germs, the spread of food-borne illness or cross-contamination—safe, hygienic practices do. A freshly washed pair of hands is equally hygienic and has a built-in-safety net—you can feel gunk on your hands that you usually cannot wearing gloves. This rule is an issue that often affects sushi chefs who work in the traditional way with bare hands, even though many of them operate some of the most pristine kitchens in the city. All good cooks wash their hands repeatedly throughout the course of a service but risk docked points (and fines) when they refuse to wear gloves. The shortcomings of the rule aren't hard to see: I’ve seen many food workers assemble a sandwich, accept money, and adjust their hat, all while wearing a pair of cheap, ill-fitted plastic gloves that they’ve probably been wearing for the past three hours. Regular, thorough hand-washing should be promoted over a strict glove adherence.The slippery slope to a bad grade:Three cooks stuffing peppers without gloves on: 9 points
A cook drinking coffee from a coffee cup during prep: 5 points
14 Points = Grade B

Farm vegetables

Cases of turnips with scraggly roots. Asparagus packed into slatted wooden crates. Bunches of carrots speckled with black dirt. Fruits and vegetables that restaurants receive from local farms do not look like conventional, industrially packed products. There is no squeaky-clean cellophane or frozen packets of individually portioned vegetables—sounds like the good stuff to most of us, but it freaks the DOH out. All of these vegetables that will eventually be washed, sorted, and cleaned at the restaurant, but might be in their natural state upon inspection—caked with dirt, with occasional ride-hitching insects, and stored in unmarked boxes that are red-flags for some DOH inspectors. Depending on how much contact the inspector has had with real produce, they may mark points for bruised strawberries (that the restaurant is saving for jam); for strangely speckled heads of escarole (heirloom varieties); farm-fresh eggs (that have a blotch of dirt or errant feather stuck to them); and greens that are washed and dried but stored in unmarked bags. Many of the rules are made for fast-food kitchens, where food goes directly from the freezer to the fryer without any human contact; the more fresh, raw product a restaurant deals with, the more they are at risk for racking up points.The slippery slope to a bad grade:
Four cases of wild arugula stored in unmarked bags: 10 points
A missing oyster tag from 10 weeks prior: 10 points
Two cracked or blemished eggs: 8 points
28 points = Grade C

Cutting boards

As soon as a cook uses a brand new, unblemished cutting board for the first time, it becomes a potential violation. One nick, scratch, or indent from a sharp chef’s knife and, depending on how cheery the inspector is feeling that day, it might be deemed an ‘unsafe’ cutting surface. This ridiculous rule is is like requiring a brand new baseball after every single pitch in the Major Leagues. Many restaurants keep a stack of unused cutting boards in stock, to quickly switch out any old ones as soon as they are alerted to the DOH’s presence.
The slippery slope to a bad grade:
Three cutting boards with nicks in them: 6 points
A cook peeling carrots without wearing gloves: 7 points
One kitchen light bulb without a protective shield: 5 points
18 Points = Grade: B

Rust on vegetable peelers

Go open your kitchen drawer. Take out your vegetable peeler. Is there a tiny bit of rust accumulating at the corners? Yes? In a professional kitchen, that would be a violation. But no one has a great reason as to why rust is so bad, aside from outdated urban myths about people getting tetanus through rusty utensils.
The slippery slope to a bad grade:
Rust on one vegetable peeler in use: 10 points
Tongs hanging from an oven door: 7 points
A cook touched a loaf of bread with bare hands: 7 points
24 Points = Grade C

Fruit flies

Even the most immaculate, scrubbed and capped bar is a draw for fruit flies, especially if it is a bar that believes in putting actual fruit in drinks, like a lemon twist in a martini or an orange wedge for a glass of Lillet. Fruit flies are sneaky and persistent, and when patrons open the door to the restaurant, they zip in and stay in. If an inspector finds one fruit fly, living or dead, he normally will not mark it. But if there are two or more, then you’re out of luck. Let’s say the inspector found evidence of fruit flies and witnessed the bartender making a pisco sour without informing the woman who ordered it that the cocktail contained raw egg whites, a supposed health hazard—the grade heads towards a B and the DOH hasn’t even made it into the kitchen yet.
The slippery slope to a bad grade:
Two fruit flies: 5 points
Forgetting to warn the customer that the drink they ordered carries potential danger: 7
A damp bar towel: 5 points
17 points = Grade B

Tempering cheeses

Consider the ubiquitous cheese plate, served at hundreds of restaurants throughout the city. While the hard cheeses are free to hang out at room temperature (their water content is not conductive to bacterial growth), the soft cheeses must be served below 41 degrees. But an Alpine-style chevre, a young Epoisses, or a camembert from Vermont held at temperatures that cold will have the consistency of wax. Cheese—the real stuff, not the blocks of industrial-grade orange cheese-product—is by its very nature controlled milk spoilage. As one of the earliest mechanisms of food safety, cheese was created to prevent milk from going bad and from making people sick. It is meant to be stored (and eaten) at lower room temperatures and, notably, has been around for centuries longer than the Department of Health.The slippery slope to a bad grade:
Three tempering cheeses for a cheese plate: 9 points
1 loaf of bread sitting on the bread station cutting board (not covered): 5 points
Two fruit flies found at the bar: 5 points
19 points = Grade B

Fermented foods

Yogurt. Kimchi. Sauerkraut. Crème Fraiche. Pickles. Kombucha. Vinegar. Ah, fermentation, the magical process that has kept civilizations alive for centuries by preserving surplus foods is condemned by the DOH. The beneficial microorganisms that transform cucumbers into half-sours and milk into yogurt can only grow outside of the refrigerator between 41 and 140 degrees, in what the DOH considers the “danger zone.” Any foodstuff left out at room temperature is in direct violation. The DOH recently amended the no-fermentation rule, noting that most fermented foods are so acidic that they deter bad bacteria growth. Nevertheless, the only way you can legally continue making the delicious miso paste for your restaurant from a recipe that you learned from your grandmother that had been passed down for generations prior, is to purchase a pH probe and meter, babysit the miso for the six months it takes to ferment, taking its pH levels every hour and recording it in a logbook, so you have proof you aren’t going to kill anyone.
The slippery slope to a bad grade:
1 batch of yogurt fermenting at room temperature: 7 points
1 dented can on the dry goods shelf: 7 points
14 points = Grade B

Clean towels under cutting surfaces

To prevent a cutting board from slipping around during prep, most cooks (the smart ones, at least) will place a clean, damp kitchen towel underneath to secure the cutting surface and prevent injury. This standard practice is a DOH violation: Any damp towel that is not sitting in a sanitizer bucket is not allowed in the restaurant. The only thing that cooks can use to keep their cutting boards from sliding around is a DOH approved non-slip cutting board mat. It’s as if the mat manufacturer lobbied a higher-up at the DOH and said, “Hey, I just invented this unnecessary product, it’s not selling well. Maybe you guys could invent a rule so restaurants are forced to buy it?”
The slippery slope to a bad grade:
Two towels under cutting boards: 6 points
A cook drinking water from a cup that has no lid: 5 points
A bucket of fermenting pickles: 7 points
18 points = Grade B

Clean spoons must be spooning at all times.

Clean, sanitized kitchen equipment, like spoons, tongs, spatulas, and knives that are not in use must be organized in the same direction. A tray of kitchen spoons must be stored such that they are all facing the same direction. Why? The Health Department’s thinking is this: If a cook reached into the drawer to grab a spoon and accidentally touched the head of an improperly stored instead of the handle, that would be a public health risk—enough to garner 5 points. Or maybe whoever invented these rules is just really OCD.
The slippery slope to a bad grade:
An out of line kitchen spoon: 5 points
An out of line bread knife: 5 points
Four room temperature quiches: 10 points
Four squeeze bottles of olive oil on the line for kitchen service, in unmarked bottles: 8 points
28 points = Grade C

People with no hair must wear hats.

You’re bald cook? A chef with a shaved head? A prep cook going through chemo? The hairless still must wear a hat in the kitchen.The slippery slope to a bad grade:
Hatless bald chef: 5 points
A cook trimming radishes with bare hands: 7 points
A dishwasher drinking a can of Red Bull in the kitchen: 5 points
17 points = Grade B

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